Thursday, January 06, 2005

Opinion Summaries

1. US v. Beck, No. 03-30470 (1-5-05). In a bank robbery trial, three witnesses gave various descriptions of the bank robber. The first trial hung; the second trial resulted in a conviction. Defendant's appeal focuses on the improper use of the photo line-up and the use of the defendant's probation officer as a lay witness expert to identify him. The 9th affirmed the convictions. The 9th reasoned that the photo line-up was not impermissibly suggestive; the photos used, drawn from a computer bank, all were close to the same general look. The 9th also found that it wasn't impermissible to show the witness a surveillance photo before the photospread line-up and it was unduly suggestive. More troublesome was the 9th's finding that it wasn't an abuse of discretion to use the PO. The PO had met with the defendant four times over the past two months, for possibly a total of 70 minutes. This contact, and the supposed quality, allowed the PO to be able to identify the defendant under FRE 701 as lay opinion testimony. The opinion presents a good overview of FRE 701 and lay identification opinion, with the various factors involved.
2. Medina v. Ashcroft, No. 03-71966 (1-4-05). The 9th reversed an order of removal because it found that a state conviction of a person for attempting to be under the influence of THC-carboxylic acid was not a controlled substance offense because this constituted "a single offense involving possession for one's own use of 30 grams or less of marijuana." The acid is a metabolite of the human body, and it can occur when marijuana (and other substances) are used. Taking a categorical approach, there is nothing that negates the possibility (or likelihood) that it was use of marijuana of less than 30 grams. The 9th found that the gov't's "vigorous" argument that use of marijuana (producing the acid) can be distinguished from the possession of marijuana made no sense, and that possession also includes personal use. See Flores-Arellano v. INS, 5 F.3d 360 (9th Cir. 1993). Rymer, dissenting, argues that the petitioner was convicted of something other than possession, here use of THC-carboxylic acid, and it is drug that is listed separately from marijuana both in Nevada and in federal statutes. Rymer would hold that because he plead to the use rather than the possession charge, well, tough luck.